Were you involved in a motor vehicle accident? Were you or was anyone else in your car hurt? How did the accident happen? Who does ICBC say was at fault? Were you working when the accident happened? How will this affect your ability to earn a living? Care for your children? Maintain your house? ICBC wants you to make a written statement: what should you do? Should you go to ICBC’s doctor for an assessment?
Those are some of the questions that arise after an accident, when you’re at your most vulnerable. A lawyer can help you work through them. Even if all you need are a few quick answers, we can help. Here are some resources for those of you who would like to work things out for yourselves:
Insurance (Vehicle) Act Regulations
If you require more, we will work on a contingency basis so that you pay us no legal fees unless we recover something for you. Our litigation team has almost 40 years of experience in trials, mediation, negotiation and all other facets of the court process.
“Real Estate Law” describes a broad range of services. We can answer your questions before you decide to buy or sell and will draft a Contract of Purchase and Sale if you do. We will also deal with your mortgage and close the deal and help you with leases, subdivisions and more complicated developments. Some things we frequently deal with are:
Contract of Purchase and Sale – We understand the land title system and the types of problems that can arise without a carefully drafted purchase contract. We know how HST, GST and PST apply and how to deal with them. If somebody else drafts the contract, see us before you sign.
Land Title Registration – We converted to electronic filing as soon as the system became generally available in British Columbia in 2004. That means we can coordinate closings involving parties situated all over the world and file documents instantaneously from our computers. In addition, our conveyancing department is very experienced, competent and strives to complete every deal quickly and with a minimal amount of stress.
Mortgages – We are familiar with the forms of most institutional lenders and can help you navigate through the various clauses. We also draft and register private mortages and most other types of security.
Subdivision – We participated in the pilot project for electronic filing of subdivision plans in 2007 and have continued to keep on top of developments. We can assist with applications and draft any supporting documents (like covenants, easements or rights-of-way) that may be required.
Development – This is really just a more complex subdivision. Maybe you want a conventional strata subdivision where you can sell individual units in a larger building, perhaps with some common property or facilities, or a bare land strata subdivision where purchasers acquire a building lot with an interest in common property or facilities or maybe you just want to create a multi-lot sudivision. We can assist you at any stage in the process and help you meet the various requirements of approving officers, the Superintendant of Real Estate, the land title office and anyone else with a say over your application.
Easements – These give the owners of one piece of property the right to use all or part of another piece of property for the benefit of the first piece. In other words, they can permit you to park on your neighbour’s property, use a road over it or take water from a well there among other things. You may need one when you sell, buy or subdivide.
Leases – The Residential Tenancy Act controls the form and content of residential leases (or “tenancy agreements”) so tightly that there is little room for negotiation or drafting. If you are considering anything novel, be sure the Act permits it. Commercial leases, on the other hand, are not overly regulated, but the rules are spread among various statutes and court decisions so it is wise to consult a lawyer before a dispute arises.
We group this type of work together for simplicity but it actually covers two areas of law: “Estates”, which involves assisting executors, administrators and beneficiaries after a death, and “Estate Planning”, which includes preparing wills, creating trusts, planning for or dealing with incapacity, providing for children and creating succession plans for businesses. We’ve provided more detail below but we’re still only scratching the surface.
When someone dies, those left behind have many tasks ahead of them. If the deceased had a will, they have to consider whether to Probate it or whether the circumstances are such that it is feasible to avoid Probate. If the deceased had no will, someone may have to apply to court for Letters of Administration in order to deal with his or her assets. There may be trusts, insurance policies, RRSPs, RRIFs, TFSAs, RSDPs or other arrangements to work through and there may be disputes. In addition, there is a risk of double taxation, and various strategies to avoid it. A brief consultation with a lawyer at the start could save a lot of time and money over the long run.
Everyone should have a will. Aside from setting out who gets your estate when you die, you also use a will to appoint an executor to be in charge of your funeral arrangements and the distribution of your assets and a guardian to look after your minor children. You should be aware of other planning tools as well, such as trusts (some common types are described below), second wills (to deal with assets which do not require Probate), powers of attorney and representation agreements and estate freezes (also included under “Business Law”), among other things. What follows is some general information on other options.
Types of Trusts
Testamentary Trust: These are trusts created as a result of somebody’s death and so are usually created by a will (although you can also create such trusts to deal with life insurance proceeds and proceeds from various benefit plans) and they are taxed at graduated rates, roughly the same as individuals are taxed. Among other things, they can be used to keep assets away from minors, protect assets from your childrens’ estranged spouses, provide for disabled children and permit your beneficiaries to take advantage of another set of lower marginal tax rates, although the “graduated rate estate” rules have limited the availability of lower marginal rates to three years from the date of death.
Family Trust: These pay income tax at the top marginal rate so they are most commonly used to hold shares in private companies and flow dividends out to people who are taxed at lower marginal rates without giving those people any control over the shares. They may also be used to protect assets, minimize probate fees, remove assets from exposure to wills variation claims, transfer business assets to children tax-free at a time of your choosing and multiply use of the capital gains exemption in a sale. They can, however, trigger serious adverse income tax consequences and fail to protect anything if not set up and administered properly.
Alter Ego Trust: These can be created by anyone 65 years old or older and have two advantages over a will: they cannot be challenged under the wills variation provisions of the Wills, Estates and Succession Act and they don’t have to be probated. As they don’t have to be probated, there are no Probate Fees and no delays in dealing with assets. In general they will have no impact on income tax payable but there are some traps to consider and they do not wholly replace a will since you do not generally put all your assets into them.
Joint Partner Trust: These are the same as alter ego trusts but are created by both spouses, usually to distribute their assets when the last of them dies.
Power of Attorney: These have been used for years, and continue to be used, to designate someone to handle our affairs during temporary absences but have also evolved into the main tool for ensuring our financial affairs remain in order if we become mentally incapable of handling them. You can authorize an attorney or attorneys to do almost everything you can do, but powers of attorney are not as useful for dealing with healthcare decisions and have other limitations. In addition, the rules have just changed, effective September 1, 2011, imposing considerably more risk and uncertainty on the attorney so be sure you understand what you’re getting into.
Agreement: These were developed to replace Powers of Attorney and can still be used to designate a Representative to make financial decisions but are generally used to deal with healthcare decisions. Firstly, they permit you to designate in advance who will be in charge if you are incapable of making your own decisons and, secondly, they spell out your wishes. To what extent do you want to remain on life support if hope of recovery is gone? How far may doctors and nurses go in attempting to save you?
We provide an extremely broad range of business law and tax-planning services and will not attempt to describe them all here. If you are unsure whether we can help you, please ask: chances are we can. Some services we definitely provide are:
Incorporation – Although the vast majority of our incorporations involve companies under the British Columbia Business Corporations Act, we also incorporate “Unlimited Liability Corporations”, Federal business corporations and societies.
Amalgamation – We can assist you in deciding whether or not to amalgamate and can amalgamate your British Columbia companies or your companies from foreign jurisdictions with your British Columbia companies.
Extra-Provincial Registration – If your British Columbia company carries on business elsewhere you generally must register it in that jurisdiction and the same applies to companies from other jurisdictions carrying on business in British Columbia. Some provinces have simplified the procedures but we can help you as much or as little as required.
Continuations – If you have a company from another jurisdiction but you intend to operate it only in British Columbia in the future, you may wish to “continue” it into British Columbia as a British Columbia company.
Mining Law – A combination of geography, facilities and remarkable individuals has made Smithers an ideal base for the mining industry. We have been here and, consequently, have had long and extensive experience serving prospectors, drillers, entrepreneurs, and other law firms requiring agency work.
Business Structuring – Before you incorporate, you should ensure that it makes sense for you. You may want to consider whether to involve your spouse/partner or even your children and, if so, whether they should hold shares directly or a trust should hold shares for them. Should you also incorporate a holding company? Are there any special consents or permits required for your type of business (ie: professionals generally must obtain consent from their college or other governing body before incorporating)? Is another business structure (ie: partnership or sole proprietorship) more advantageous?
Acquisitions – Is it better to buy an existing business rather than starting from scratch? Should you buy shares or assets? What are the risks and how can you minimize them? To what extent can you prevent the seller from competing with you after the sale? How can you structure it to minimize tax, on the sale and in the future? We can work through these and many other questions with you and we can close the deal.
Business Succession – Do you sell, pass it to the kids or do a bit of each? How can you be fair but still ensure that the business carries on? See out “Tax” section for a more comprehensive discussion.
Whether in business or in your personal life, disputes will arise. While court is best used as a last resort, what if you’re at that stage, or what if you get sued? Our litigation department represents clients in all levels of British Columbia courts and also has extensive experience with alternative dispute resolution (often called “ADR”), such as negotiation, mediation and arbitration.
Some related services that our litigation department provides are:
- debt collection and judgment enforcement;
- filing and enforcing builders liens; and
- enforcing and defending repairers’ liens.
Our philosophy has always been that it is better to settle family disputes amicably than to exacerbate them in court. It’s far easier on the children and generally leaves considerably more money for everyone. Accordingly, we encourage Family Law Mediation.
In Family Law Mediation a mediator guides families through the decisions you need to make when your relationship ends. This permits you to keep control over the costs and the ultimate outcome. For more information, please follow this link:
We practice conventional family law as well. Below is a brief summary of the services we provide:
- devising tax-efficient strategies for dividing assets
- preparing separation agreements
- calculating child and spousal support entitlements
- custody and access applications
- obtaining divorces
We offer flat-rate options for family law consultations, uncontested divorces, cohabitation/pre-nuptial agreements, separation agreements and adoptions. Contact us to find out if your situation fits into a flat-fee structure.
Our diligent eyes on Ottawa: what are they planning?
We have years of experience assisting clients with tax issues. Whether income tax, HST, GST, PST, Property Transfer Tax or or “quasi” taxes like Probate Fees and CPP, this permeates everything. The biggest barrier to most business transactions (or maybe just most transactions. . .) is tax so we have to understand it. We do not prepare or file general tax returns- although we do frequently file forms or returns that pertain to particular transactions- or suggest ways to expense your dog food. We do, however, devise plans to fit the circumstances and we always consider the tax implications of transactions or structures involving our clients to minimize the costs. We have the experience and maintain the resources to develop and implement sound strategies.
Some issues we deal with frequently are:
Business Succession – Sometimes it is better to sell your business before retiring but you may prefer to pass it on to the next generation. There are many strategies for doing this and the decision of which to choose is usually tax-driven but also depends on whether you consider yourself to be selling the business or giving it away. Maybe it is your most valuable asset, so how can you give it to one child and still be fair to the others? We will help you devise a plan, work with your advisors to devise one or implement a reasonable plan developed by someone else. You may wish to do an “estate freeze”, create a family trust to hold new shares or find a way to gift what you have to the next generation. Every situation is unique and we never stop learning.
Marital Breakdown – Dividing assets when a relationship ends is never a good thing but there are better and worse ways to go about it. Is there an opportunity to use the capital gains exemption and pay pre-tax money to produce tax-free proceeds? Would it be better to use another company to divide corporate assets or redeem shares over time? What about claiming deductions for spousal support payments? Is there a better way to divide the family home (or ranch) so that the tax, at least, is less of a burden? There is a tendency for ex-partners to fight to the last penny (harder now that they’ve stopped producing pennies but still apparently worth a fight) but deals are made because they are mutually advantageous and saving tax for both sides can create a huge mutual advantage.
Death Taxes – No, they don’t stop at death. In fact, they all tend to hit at once and, if you’re not careful, double up. It may be too late to fix a will or settle a trust but there are graduated rate estates, pipelines, bumps and 164(6) reorganizations to consider. Hopefully the deceased has a good estate plan in place but there is always more that can be done.
Business Startup – Starting a business is fairly easy but there are always better ways to do things, and traps if you do them wrong. For instance, there are often tax advantages to incorporating but companies need assets in order to function, and transferring assets to a company (or a partnership for that matter) triggers income tax, GST and possibly PST or Property Transfer Tax. In most cases these can be avoided but avoiding them and keeping other options open- income sprinkling among other family members, qualifying for the small business tax rate, maintaining access to the capital gains exemption, etc.- require advance planning. Decisions become easier if you make them all the time but most people don’t start a new business every week. We do